Evidence of meeting #34 for Public Safety and National Security in the 40th Parliament, 3rd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was factors.

A recording is available from Parliament.

On the agenda

MPs speaking

Also speaking

  • Clerk of the Committee  Mr. Roger Préfontaine
  • Mary Campbell  Director General, Corrections and Criminal Justice Directorate, Department of Public Safety and Emergency Preparedness
  • Michel Laprade  Senior Counsel, Legal Services, Correctional Service Canada

4:20 p.m.

Director General, Corrections and Criminal Justice Directorate, Department of Public Safety and Emergency Preparedness

Mary Campbell

Yes, I appreciate--

Mr. Laprade.

4:20 p.m.

Senior Counsel, Legal Services, Correctional Service Canada

Michel Laprade

The courts have already said that. In Kozarov, the court has already said that the factors listed in the act do not lend themselves to a positive or negative decision by the minister and that the minister can take into account any other factors that are relevant in the context, and--

4:25 p.m.

NDP

Don Davies Vancouver Kingsway, BC

Correct, but the current legislation says the minister must take into account those four criteria.

4:25 p.m.

Senior Counsel, Legal Services, Correctional Service Canada

Michel Laprade

Yes, but even if he does not list or use one of those factors in making a negative decision on a transfer, for example, what the minister is obligated to do--and this is what the courts have said--is that there has to be a decision that is provided with rational reasons. You have to be intelligible in your decision, so that the person who receives the decision knows exactly the basis of the denial, and those elements or considerations the minister lists, or the reasons for the denial, have to be linked with the purpose of the act itself and--

4:25 p.m.

NDP

Don Davies Vancouver Kingsway, BC

Of course. I understand how the judicial review process works.

4:25 p.m.

Senior Counsel, Legal Services, Correctional Service Canada

Michel Laprade

--this is within the context of the existing legislation right now.

4:25 p.m.

NDP

Don Davies Vancouver Kingsway, BC

Right. I understand that there is discretion and that the minister can make whatever decision he wants as long as it's rationally connected. But the one direction in the current legislation or the one thing the minister cannot avoid is that he must consider four factors. That has to be the case: “the Minister shall consider the following factors...”. If the minister didn't consider those factors, there would be a successful judicial review.

Under the current proposed legislation, that would change. The minister would not be required to consider any of those factors. That's what I'm driving at. I'm not getting a satisfactory answer that would tell me that the minister would be required to take into account these factors, when it clearly says that he or she is not required to. That's the concern.

4:25 p.m.

Director General, Corrections and Criminal Justice Directorate, Department of Public Safety and Emergency Preparedness

Mary Campbell

The only thing I would add--and I'm sorry that I'm going to disappoint you, because I'm not going to answer your question directly--is that I would just point out again that denials of applications are not a new phenomenon, and they are not a rare phenomenon.

For example, when you look at the annual report for 2008-09, you will see a graphic about denials of applications. This is the time period between 2004 and 2009. Of the applications denied during that period, 85% of the denials were in fact done by the foreign country, not by Canada. Fifteen per cent of denials....

4:25 p.m.

NDP

Don Davies Vancouver Kingsway, BC

Is it your testimony that you think denials will go up or down if this legislation is passed?

4:25 p.m.

Director General, Corrections and Criminal Justice Directorate, Department of Public Safety and Emergency Preparedness

Mary Campbell

It's impossible to answer that. It's impossible.

4:25 p.m.

NDP

Don Davies Vancouver Kingsway, BC

You have no basis to extrapolate? You have no opinion?

4:25 p.m.

Director General, Corrections and Criminal Justice Directorate, Department of Public Safety and Emergency Preparedness

4:25 p.m.

NDP

Don Davies Vancouver Kingsway, BC

Okay.

Thanks.

4:25 p.m.

Conservative

The Chair Kevin Sorenson

Thanks very much.

We'll go to Mr. Norlock.

October 20th, 2010 / 4:25 p.m.

Conservative

Rick Norlock Northumberland—Quinte West, ON

Thank you very much, Chair. I see that you're enthralled with the evidence being presented here. I think that in court--we all watch television--Mr. Davies would be accused of badgering his witness. But anyways, we'll leave that alone.